Download Weigert v. Trade Wind Ventures, Inc.

Page 1
667 So.2d 913, 21 Fla. L. Weekly D337
(Cite as: 667 So.2d 913)
District Court of Appeal of Florida,
Third District.
John WEIGERT, Appellant,
v.
TRADE WIND VENTURES, INC., and Gary
Braverman, Appellees.
No. 95-1394.
Feb. 7, 1996.
Buyer sued seller and its principal for breach of sales
contract. The Circuit Court, Dade County, Gisela
Cardonne, J., denied buyer's claim, and buyer appealed. On rehearing, the District Court of Appeal
held that: (1) seller and its principal were jointly liable
for return of buyer's deposit, which principal had
personally guaranteed, and (2) seller was separately
liable for difference between market price and contract purchase price, less amount of deposit.
Reversed and remanded with instructions.
West Headnotes
Guaranty 195
34
195 Guaranty
195II Construction and Operation
195k33 Nature of Liability
195k34 k. In General. Most Cited Cases
Guaranty 195
36(5)
195 Guaranty
195II Construction and Operation
195k36 Scope and Extent of Liability
195k36(5) k. Guaranties of Sales and Credits. Most Cited Cases
Shipping 354
27
354 Shipping
354II Title
354k23 Sales
354k27 k. Rights and Liabilities of Parties in
General. Most Cited Cases
As damages for seller's breach of contract to sell
sports/fishing vessel, seller and its principal were
jointly liable for return of buyer's deposit, which
principal had personally guaranteed, and seller was
separately liable for difference between market price
and contract purchase price, less amount of deposit.
*913 An Appeal from the Circuit Court for Dade
County, Gisela Cardonne, Judge.Waldman & Feluren,
P.A., and Glenn J. Waldman and Craig J. Trigoboff
(Fort Lauderdale), for appellant.
Lee Milich, for appellees.
Before SCHWARTZ, C.J., and NESBITT and
JORGENSON, JJ.
ON MOTION FOR REHEARING AND CLARIFICATION
PER CURIAM.
On consideration of appellees' motion for rehearing
and clarification, we grant the motion in part, withdraw our opinion filed December 13, 1995, and substitute the following opinion.
Buyer, John Weigert, appeals from a final judgment
after a non-jury trial denying his claim for breach of
contract for sale of a vessel. For the following reasons,
we reverse.
In 1986, buyer entered into a contract with seller,
Trade Wind Ventures, Inc., by which seller agreed to
sell a sports/fishing vessel to buyer for $165,000, with
closing to occur by January 1991. The contract also
recited receipt by seller from buyer of $20,000 in
“cash and other considerations, including services
rendered for the restoration of the VESSEL.” The
contract further provided for the return of $20,000 in
cash to buyer upon default of the seller. The $20,000
refund was personally guaranteed by seller's principal,
Gary Braverman. There is no dispute that buyer provided services and cash towards the restoration of the
vessel. Nonetheless, in December 1987, seller sold the
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
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667 So.2d 913, 21 Fla. L. Weekly D337
(Cite as: 667 So.2d 913)
vessel to a third party for the substantially higher price
of $215,000 and did not return buyer's deposit.
*914 The contract terms are clear and unambiguous
and the evidence is undisputed that seller breached its
contract to sell the vessel and Mr. Braverman
breached his guarantee. As damages on the breach of
the sales contract, buyer is entitled to the benefit of his
bargain, measured by the market value of the vessel at
the time of the breach. See Kneale v. Jay Ben Inc., 527
So.2d 917 (Fla. 3d DCA 1988). The only evidence at
trial on market value appears to be buyer's evidence
that the vessel was sold to a third party for $215,000
FN1
; seller did not present any evidence. Buyer is entitled to judgment for damages in principal of (1)
$20,000 against both seller and Mr. Braverman on the
deposit refund; and (2) an additional $30,000 against
seller separately-the $50,000 difference between the
market price and the contract purchase price less the
$20,000 joint liability of the seller and Mr. Braverman
for return of the deposit.
FN1. This amount includes a brokerage
commission that the seller did not receive.
However, seller did not rebut buyer's testimony that buyer was a licensed yacht broker
and, thus, would have kept the commission
had he had the opportunity to resell the vessel
himself.
Upon further consideration, we also withdraw our
December 13, 1995, order awarding attorney's fees
against both seller and guarantor and instead order that
appellant's motion for attorney's fees and costs is
granted as to seller, Trade Wind Ventures, only, the
amount to be fixed by the trial court. See MSI Financial Group, Inc. v. Veterans Constr. Corp., 645 So.2d
178 (Fla. 3d DCA 1994) (guarantor not subject to
attorney's fees provision contained in underlying
contract but not in guarantee agreement).
Reversed and remanded with instructions to enter
judgment for buyer in accordance with this opinion.
Fla.App. 3 Dist.,1996.
Weigert v. Trade Wind Ventures, Inc.
667 So.2d 913, 21 Fla. L. Weekly D337
END OF DOCUMENT
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.